CLAIMANTS COSTS REDUCED BECAUSE OF FAILURE ON CERTAIN POINTS: 15% AND 50% REDUCTION

In Civilians v Ministry of Defence [2018] EWHC 690 (QB) Mr Justice Leggatt reduced the costs of the successful party due to the fact that the claimants failed on some issues.

THE CASE

The claimants had been successful in an action against the defendant. They had succeeded in an action for breach of human rights but failed in an action in tort.

THE JUDGMENT ON COSTS

There are two matters which, in my view, justify departure in these cases from the starting point that the claimants should recover the whole of their costs to be assessed on the standard basis. The first is that the claimants have each brought claims in tort and also under the Human Rights Act and, although the claims under the Human Rights Act succeeded, the claims in tort did not. Those claims ultimately failed in their entirety because they were found to be time-barred.

There was a substantial overlap between the facts relied on for the purpose of the tort claims and for the purpose of the human rights claims in that both were concerned with whether the claimants had been mistreated and whether they were unlawfully detained. However, that overlap was by no means complete. In particular, the expert evidence on Iraqi law was only relevant to the tort claims. There was also a good deal of legal argument, including on the doctrine of Crown act of state, which was only relevant to the tort claims.

I accept that the claimants succeeded on a number of sub-issues in the tort claims, but I am rejecting what I have described as a balance sheet approach and am looking at success and failure at a higher level than that. In addition, although the court is not for the most part concerned with the quantum of the claimants’ recovery, I do not think it irrelevant to take some account of the fact that the failure of the tort claims had a substantial effect on the level of damages awarded in these four cases and is likely to have a similar effect on the amount recoverable in many other cases too.

In the cases of Alseran and Al-Waheed, the fact that the tort claims failed is, in my view, the only factor which makes it appropriate to depart from the general rule in relation to the liability for costs. In my view, an appropriate discount to reflect the failure of the tort claims is 15 per cent and, accordingly, in the cases of Alseran and Al-Waheed, the defendant will be ordered to pay 85 per cent of the claimants’ costs.

In the cases of MRE and KSU, the same factor applies, but there is also a further factor which it is common ground justifies some reduction in the costs awarded to the claimants – albeit that the extent to which those costs should be reduced is in dispute. That is the fact that a major area of dispute – indeed, I think it does not go too far to say the main area, at least of factual dispute – at the trials was the identity of the forces who captured and detained the claimants. That issue was of major importance – not least because the claimants gave evidence which was not ultimately disputed that they had suffered abuse, whilst detained overnight on a ship which belonged to the same nation as the capturing forces, which was of a different order of seriousness than the mistreatment which was the subject of their claims that succeeded.

The claimants lost on that issue because I held that they had failed to prove that the forces who captured them and detained them overnight on the large warship where they were mistreated were British forces as opposed to forces of the United States. That issue occupied a very large proportion of the amount of time at trial and most of the factual evidence at the trial was directed to that issue.

The claimants have criticised the disclosure given by the defendant on that issue and emphasise the fact that a very substantial body of evidence served by the defendant on that issue was not served timeously but emerged on a piecemeal basis, both at the start of the trial, during the trial and indeed after the trial had ended. I think there is force in that criticism, and the fact that disclosure of documents and production of evidence occurred in that way must undoubtedly have increased the costs incurred by the claimants in dealing with that issue – which is a matter which I should take into account.

I do not think any inference can be drawn, however, that if disclosure had been given and evidence served sooner, the claimants would not have contested that issue or that their approach to it would have differed. Nor do I go so far as to say that the defendant’s conduct was unreasonable and should be marked on that account in the order made as to costs. I also consider that there is force in the points made by Mr Sweeting QC, first of all that the defendant’s task was to some extent inevitably responsive because it was seeking to demonstrate a negative, namely, that it was not UK forces who had captured the claimants. That meant that whenever, for example, another ship was identified as a possible candidate for the ship on which the claimants were detained, documents and evidence relating to that ship and its layout became relevant.

I also think it right to say, as Mr Sweeting pointed out, that the evidence which probably ultimately turned out to be of greatest significance on that issue was evidence about the presence of US forces operating in the relevant area and evidence about the uniforms and equipment, etc, of forces of the United States. None of that evidence was within the possession or control of the defendant. Therefore, the criticisms made by the claimants of the defendant’s delay in providing disclosure and production of evidence do not apply to that critical part of the evidence bearing on the issue.

I have considered carefully the defendant’s primary proposal which is that the court should, on this particular issue, make an issue-based order providing that there be no order relating to the costs of the issue of the identity of the forces who captured and initially detained the claimants. I have concluded, however, that the difficulty and complication that would be involved in applying such an issue-based order and separating, for example, such part of the costs of the claimants’ evidence as related to that issue from that part which related to other issues in the case outweighs the advantage of the apparently greater level of precision that such an order would produce. Any division of the costs between that issue and other issues would, in any event, involve judgments of a somewhat arbitrary nature.

I consider that the better course is the simpler one of reflecting, albeit at a very broad level based on my impression as the trial judge of the amount of resources likely to have been devoted to that issue, the proportion of costs which should be attributed to it. The conclusion I reach is that, reducing the costs recoverable by the claimants to take account of the failure on that issue and of their failure on the tort claims, the appropriate order to make is that MRE and KSU should be awarded 50 per cent of their individual costs.